New H-1B Cap Registration Regulation to be Implemented April 1
The Department of Homeland Security (DHS) posted the final rule amending the regulations for H-1B cap-subject petitions. The rule is to be officially published tomorrow, January 31, 2019, and will go into effect on April 1, 2019. The regulation implements the new electronic registration system for petitioners seeking to file H-1B cap-subject petitions and also changes the order in which the lottery is conducted. Although, USCIS has announced that for FY 2020 it will suspend the electronic registration portion of the rule while it completes user testing but will put into effect the reordering of the lottery selection. The lottery selection process will select cases submitted by all petitioners, including those eligible for the advanced degree exemption, for the regular lottery first, followed by the master’s lottery, which is a reversal of prior practice.
The new registration system seeks to lower overall costs for employers and increase government efficiency. The process will require Petitioner’s to electronically register with USCIS during a designated registration period and only those selected will be eligible to file H-1B cap-subject petitions. The reordering of the lottery selection will have the effect of increasing the chances of beneficiaries with a U.S. master’s degree or higher to be selected under the H-1B lottery. The USCIS estimates that it will increase the odds by an estimated 16% (or 5,340 works) for H-1B beneficiaries eligible for the master’s cap.
We will continue to issue updates on the new rule as it becomes available.
USCIS Resumes Premium Process for H-1B Cap (FY2019) Petitions
USCIS announced that it will resume accepting Premium Processing requests starting Monday, January 28, 2019 for all FY 2019 H-1B cap petitions, for both “master’s cap” and “regular cap” petitions. Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions may include the request for premium processing with their RFE response.
Please note that the previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. It had been announced that the suspension would last until February 19th. However, this date has not been reconfirmed, and in its recent announcement the USCIS stated that premium processing for remaining H-1B cases will resume as agency workloads permit.
Government Shutdown Ends
President Trump signed the short-term spending bill on Friday, January 25, 2019 to reopen the federal government through February 15, 2019 while budget and border security negotiations continue. This is the longest government shutdown in US history. If an agreement on border security is not reached by February 15th, a further shutdown could occur. President Trump has also stated that if necessary he may declare a national emergency to build the wall, thereby circumventing Congress.
Affected immigration functions are expected to resume shortly after the bill becomes law, including the lapsed E-Verify system, the EB-5 Regional Center Program, and non-detained immigration courts. Some CBP services that were suspended or slowed by the shutdown will resume but may continue to experience delays as CBP offices work through backlogs. The shutdown did not affect USCIS, embassy/consular services and Department of Labor immigration operations.
DACA Renewals still being accepted after US Supreme Court Inaction
The U.S. Supreme Court has not taken any action on the Trump Administration’s request to expedite and consolidate review of the three challenges made to its decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. This inaction means that the Department of Homeland Security will continue to accept renewal applications, possibly for the next several months. New applications for those not previously accorded DACA benefits are not being accepted. Oral arguments are likely to not be heard until October 2019.
Last year, federal district courts in California, New York and Washington D.C. temporarily blocked the Administration’s decision to rescind DACA and each imposed nationwide injunctions requiring the Department of Homeland Security to continue to accept DACA application renewals while the legal challenges moved forward. While the 9th Circuit Court of Appeals has upheld the California district court’s ruling; appeals in the 2nd Circuit and the D.C. Circuit remain under review.
DHS Releases Migrant Protection Protocols (MPP)
On January 24, 2019, DHS Secretary Kirstjen M. Nielsen released information on the Migrant Protection Protocols (MPP), first announced in December 2018, whereby certain individuals entering or arriving from Mexico, illegally or without documentation, may be returned to wait outside the U.S. for the duration of their immigration proceedings. As described by the American Immigration Lawyers Association (AILA), the “Remain in Mexico” policy is likely illegal as it limits the access asylum seekers will have of the protections they are entitled to under both domestic and international laws. The difficulties for this group of applicants is extensive, including having limited or no access to U.S. asylum attorneys to help applicant successfully navigate through proceedings, which are likely to result in denied applications. In addition, returning asylum applicants can pose a severe security risk or death.
As stated by DHS, MPP will be applicable to aliens arriving in the US on land from Mexico who are not clearly admissible and who are placed in removal proceedings. The statement clarifies that this includes aliens who claim a fear of return to Mexico at any point during apprehension and/or processing, but who have been assessed not to be more likely than not to face persecution or torture in Mexico. Unaccompanied alien children and aliens in expedited removal proceedings are not supposed to be subject to MPP.
Those subject to MPP will not be released into the United States. Instead, they will be given a Notice to Appear for their immigration court hearing and returned to Mexico (even those foreign nationals who are not Mexican citizens) until their hearing date. While they await hearing dates, the Trump Administration has stated that the Mexican government will provide them with the appropriate protections. However, the Mexican government released a press statement , clarifying that Trump Administration’s MPP policy is a unilateral decision.
